Pages

Monday, 23 April 2012

Govt. of India should immediately resign because it has failed to uphold Article 21 of the Constitution of India relating to protection of life and personal liberty

Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only. If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person. Such violation would not fall under the parameters set for the Article 21. in such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a person.

The state cannot be defined in a restricted sense. It includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but it does not include non-statutory or private bodies having no statutory powers. For example: company, autonomous body and others. Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State which are not according to procedure established by law. The main object of Article 21 is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed. Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country . As far as Personal Liberty is concerned , it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. Procedure established by Law means the law enacted by the State. Deprived has also wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court inGopalans case that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d). at that time Gopalans case was the leading case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalans case in the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty. This view has been further relied upon in a case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others as follows:

Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only for Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. In another case of Olga Tellis and others v. Bombay Municipal Corporation and others , it was further observed : Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is just or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.As stated earlier, the protection of Article 21 is wide enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of Indiaand others in respect of bonded labour and weaker section of the society. It lays down as follows:

Article 21 assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are therefore bound to ensure observance of the various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the directive principles of the state policy.

The meaning of the word life includes the right to live in fair and reasonable conditions, right to rehabilitation after release, right to live hood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below: (1) The right to go abroad.(2) The right to privacy.(3) The right against solitary confinement.(4) The right against hand cuffing.(5) The right against delayed execution.(6) The right to shelter. (7) The right against custodial death. (8) The right against public hanging.(9) Doctors assistance.

It was observed in Unni Krishnans casethat Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life.

As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it. Through various judgments the Apex Court also included many of the non-justifiable Directive Principles embodied under part IV of the Constitution and some of the examples are as under:(a) Right to pollution free water and air. (b) Protection of under-trial. (c) Right of every child to a full development.(d) Protection of cultural heritage.

Maintenance and improvement of public health, improvement of means of communication, providing human conditions in prisons, maintaining hygienic condition in slaughter houses have also been included in the expanded scope of Article 21. this scope further has been extended even to innocent hostages detained by militants in shrine who are beyond the control of the state.

The Apex Court in the case of S.S. Ahuwalia v. Union of India and others it was held that inthe expanded meaning attributed to Article 21 of the Constitution, it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If in any circumstance the state is not able to do so, then it cannot escape the liability to pay compensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution. While dealing with the provision of Article 21 in respect of personal liberty, Hon'ble Supreme Court put some restrictions in a case of Javed and others v. State of Hariyana, AIR 2003 SC 3057 as follows: at the very outset we are constrained to observe that the law laid down by this court in the decisions relied on either being misread or read divorced of the context. The test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice- economic, social and political- cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well as philosophically, provide colour to the meaning of fundamental rights and these principles are deducible from those very decisions which have been relied on by the learned counsel for the petitioners.

The Apex Court led a great importance on reasonableness and rationality of the provision and it is pointed out that in the name of undue stress on Fundamental Rights and Individual Liberty, the ideals of social and economic justice cannot be given a go-by. Thus it is clear that the provision Article 21 was constructed narrowly at the initial stage but the law in respect of life and personal liberty of a person was developed gradually and a liberal interpretation was given to these words. New dimensions have been added to the scope of Article21 from time to time. It imposed a limitation upon a procedure which prescribed for depriving a person of life and personal liberty by saying that the procedure which prescribed for depriving a person of life and personal liberty by saying that the procedure must be reasonable, fair and such law should not be arbitrary, whimsical and fanciful. The interpretation which has been given to the words life and personal liberty in various decisions of the Apex Court, it can be said that the protection of life and personal liberty has got multi dimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprived the life or personal liberty of a person would be against the provision of Article 21 of the Constitution.

The expanded scope of Article 21 has been explained by the Apex Court in the case ofUnni Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below: (1) The right to go abroad.(2) The right to privacy.(3) The right against solitary confinement.(4) The right against hand cuffing.(5) The right against delayed execution.(6) The right to shelter. (7) The right against custodial death. (8) The right against public hanging.(9) Doctors assistance.

Is the Govt. of India ensuring that these rights listed at (1) to (9) above are being extended to all the citizens of the country? Is every citizen who has been condemned to death by law is being executed in time? Is it not a fact that there is going to be delayed execution in the case of Afzal Guru and Bhullar and also Rajiv Gandhi's murderers because the Hon'ble President has failed to take a decision on their Mercy Petitions pending before her? If the answer is in the affirmative, then is the Fundamental Right under Article 21 of the Constitution not being infringed at the highest level viz., that of President of India? If the answer is in the affirmative, then should action not be taken against her for infringing upon the Fundamental Right under Article 21 of the Constitution in respect of Afzal Guru, Bhullar and murderers of Rajiv Gandhi who have been sentenced to death?

Is the right to shelter listed at (6) above being provided to every citizen of India? If not, why not and why those guilty of denying this right not being punished?

Is the Doctors assistance listed at (9) above being provided to every citizen of India? If not, why not and why those guilty of denying this right not being punished?

Article 21 also provides for right to live with human dignity, free from exploitation? Is it not a fact that this right is being denied to below the poverty line citizens of India and they are being exploited as bonded labour or sex slaves? If the answer is in the affirmative, what action is being taken against those persons who are responsible for depriving the below the poverty line citizens of the right to live with human dignity, free from exploitation? Why are those person not being punished? Many below the poverty line citizens of India are dying of slow starvation in sub-human conditions fit only for animals and are selling their children for a paltry sum of Rs.100/- per child.

Is it not a fact that Kargil War had to be waged because a certain person gave orders to the Army to quit the border posts in Kargil in Winter thereby leaving the posts to be captured by the Pakistani Army? If the answer is in the affirmative, who was the person who gave such orders and was this person not responsible for the Kargil War which deprived many brave Army officers of their right to live? Would the Govt. take action against such a person?

Is it not a fact that after the death of the late Prime Minister, Mrs. Indira Gandhi, Congress people took upon themselves to kill Sikhs in 1984 and deprived them of their Fundamental Right to live? Who was the President of the Congress Party or any other office-bearer of the party who gave instructions for killing the Sikhs in 1984 and depriving them of their Fundamental Right to live? Is it not a fact that the beards of Sikhs were cut by Congress workers with Sickles thereby depriving them of their right to live with dignity in 1984? Who was the person who ordered Congress workers to do such acts and why no action has been taken against him?

It is easy for the Govt. to say that it would abide by the Constitution and act in accordance with the law as upheld by the Hon'ble Supreme Court but I must say that Govt. has miserably failed to uphold the Constitution particularly with reference to Article 21 thereof regarding the right to life and personal liberty. Since all the Ministers of Govt. of India including the Prime Minister had sworn to uphold the Constituion, they should immediately resign for failing to uphold the provisions of the Constitution.